JUDGMENT :

MANMOHAN, J.

1. Criminal Appeal Nos. 1244/2018, 1249/2018 and 95/2019 have been filed by appellants- convicts Nikhil Saxena, Vishal Sonkar as well as Punit @ Raju respectively challenging the judgment dated 16th November, 2018 and the order dated 19th November, 2018 passed by the Additional Sessions Judge/Pilot Court, North District, Rohini Courts, Delhi in Sessions Case No. 482/2018 arising out of FIR No. 101/2018 under Sections 302/393/ 397/34 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Sections 25/27 Arms Act registered with Police Station Adarsh Nagar. The appellants-convicts have been convicted under Sections 302/393/34 IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs. 10,000/- for offence punishable under Section 302 read with Section 34 IPC as well as rigorous imprisonment for five years with fine of Rs. 5,000/- for offence punishable under Section 393 read with Section 34 IPC. The appellant- convict Punit @ Raju had also been convicted under Section 25 Arms Act and sentenced to rigorous imprisonment for one year with fine of Rs. 5,000/-

CASE OF THE PROSECUTION

2. The case of prosecution in brief is that Naresh (deceased) was working at Bharat Petroleum Petrol Pump and on 13th April, 2018, at about 1.00 A.M. he had gone to bring tea from a nearby stall for his co-workers. When he did not return for about twenty-twenty five minutes, two of his co-workers - Devender Pratap Mishra (PW-1) and Yashpal (PW-2) went to look for him. After walking some distance, they saw Naresh lying on the ground and three people standing near him. After seeing Devender Pratap Mishra (PW-1) and Yashpal (PW-2), those three people fled on their bike, which was of red colour and having green colour on its engine while shouting bhago-bhago. Devender Pratap Mishra (PW-1) and Yashpal (PW-2) immediately rushed towards Naresh and they saw that he was conscious and had an injury on his chest. He told them that the three boys had tried to snatch his mobile phone and when he resisted, two boys held him while the third stabbed him using a knife. Thereafter, Naresh was brought to the petrol pump, the police was informed and he was shifted to a hospital in a PCR Van. Mr. Naresh succumbed to his injuries at AIIMS Trauma Centre on the same day at about 8 a.m.

FINDING OF THE TRIAL COURT

3. The Trial Court convicted all the appellants-convicts under Sections 302/393/34 IPC and appellant-convict Punit @ Raju additionally under Section 25 Arms Act. However, in the absence of evidence to establish who had used the weapon of offence, appellant-convict Punit @ Raju was acquitted of the charge under Section 397 IPC. The conclusion of the Trial Court is reproduced herein-below:-

“128. It has not been proved on record as to who out of these three accused persons stabbed Naresh and used the knife in commission of offence. However, the dying declaration and other circumstances shows that all three were having common intention to rob Naresh and when Naresh resisted they stabbed him resulting into his death. The post mortem report Ex.PW23/P40 clearly shows that injury No. 1 was sufficient to cause death in ordinary course of nature. Keeping in view the above discussion as the prosecution has failed to prove and establish as to who used the weapon hence Punit is acquitted u/s 397 IPC. But keeping in view the dying declaration and other circumstances all the accused are convicted u/s 393 r/w 34 and 302 r/w 34 IPC. Accused Punit is also held guilty u/s 25 Arms Act for being found in possession of button actuated knife.”

ARGUMENTS ON BEHALF OF THE APPELLANT-CONVICT NIKHIL SAXENA

4. Mr. Jai Khanduja, learned counsel for the appellant-convict Nikhil Saxena stated that the FIR in the present case had been registered on the basis of DD No. 6A and not as per the statements made by any of the eyewitnesses. He pointed out that SI Tej Singh (PW-24), who had gone to the scene of crime i.e. Bharat petroleum outlet had deposed that he had n